in Re: Adan Molinar

• Court: Court of Appeals of Texas
• Decided: May 27, 2011
• Docket: 08-11-00172-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § IN RE: ADAN MOLINAR, § No. 08-11-00172-CR Relator. § AN ORIGINAL PROCEEDING

§ IN MANDAMUS

§

MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS

Adan Molinar has filed a petition for writ of mandamus, complaining of the trial court’s

failure to rule on his motion for a nunc pro tunc order. For the reasons stated below, we deny the

petition.

On July 13, 2010, Molinar’s attorney mailed a motion for nunc pro tunc and a cover letter

addressed to the El Paso County District Clerk. The nunc pro tunc motion asserts that the judgment

adjudicating Molinar’s guilt did not include all of the jail time credits to which he was entitled.

In his mandamus petition, Molinar states that the trial judge has not ruled on the nunc pro

tunc motion. Molinar contends that the trial judge had a ministerial duty to rule on the motion and

also had a ministerial duty to grant the requested credits.

A writ of mandamus will issue to compel a trial court to perform a ministerial act when the

relator has no adequate remedy at law. State ex rel. Young v. Sixth Judicial Dist. Court at

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). When a motion has

been properly filed and brought to the court’s attention, the act of giving consideration to and ruling

upon the motion is a ministerial act, and mandamus may issue to compel the court to act. See id.;

In re Chavez, 62 S.W.3d 225, 228 (Tex. App. – Amarillo 2001, orig. proceeding). Molinar’s attorney states in the petition that the nunc pro tunc motion “has never been ruled

upon after several attempts by Relator to bring the matter to the attention of the proper parties.” This

statement is vague. It does not note when the attempts were made, nor does it define what is meant

by “proper parties.” In addition, there is no evidence to support the statement. When filing a

mandamus petition, a relator must provide “a certified or sworn copy of every document that is

material to the relator’s claim for relief.” TEX . R. APP. P. 52.7(a)(1). Furthermore, “[t]he person

filing the petition must certify . . . that every factual statement in the petition is supported by

competent evidence.” TEX . R. APP . P. 52.3(j).

All the evidence shows is that Molinar’s attorney mailed the motion and cover letter to the

district clerk on July 13, 2010. This is insufficient to establish that the motion was brought to the

trial judge’s attention. See Chavez, 62 S.W.3d at 228 (indicating that the district clerk’s knowledge

cannot be imputed to the trial judge).

Accordingly, the petition for a writ of mandamus is denied. Molinar’s motion to proceed

without payment of costs is granted.

GUADALUPE RIVERA, Justice May 27, 2011

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)